Letter from America: The high court jumps into the war on terror - Americas - International Herald Tribune

John Yoo, a principal architect of the Bush administration's legal response to the terrorist threat, sounded perplexed and a little bitter. The Supreme Court had methodically dismantled the legal framework that he and a few other administration lawyers had built after the attacks on Sept. 11, 2001.

"What the court is doing is attempting to suppress creative thinking," said Yoo, who now teaches law at the University of California at Berkeley. "The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.'"

While in the Justice Department's Office of Legal Counsel from 2001 to 2003, Yoo helped write a series of memorandums setting out a bold and novel legal strategy to find, hold, question and punish America's enemies. The memorandums said the Geneva Conventions did not apply to people the administration designates as enemy combatants.

The memos contemplated the use of highly coercive interrogation techniques.

The court's decision in Hamdan v. Rumsfeld, Yoo said, may signal the collapse of the entire enterprise. "It could affect detention conditions, interrogation methods, the use of force," he said. "It could affect every aspect of the war on terror."

True, the decision itself - holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way - was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat.

"The mood music of this opinion so lacks the traditional deference to the president," said John McGinnis, who served in the Justice Department from 1987 to 1991 and now teaches law at Northwestern University, "that it would seem to have implications for his other programs."

The administration had built its case in part on a vote by Congress, taken a week after Sept. 11, that authorized the president to "use all necessary and appropriate force" against those who participated in and supported the attacks. The administration has relied on that authorization as legal support for several of its programs.

In 2004, the Supreme Court endorsed a part of this argument, but Justice John Paul Stevens, writing for the majority in Hamdan, was having none of it. There is, he said "nothing in the text or legislative history" of the authorization "even hinting that Congress intended to expand or alter" existing laws concerning military trials.

The opinion, Yoo said, seemed to require Congress to specify a laundry list of powers before the president can act.

"I worked on the authorization," he added. "We wrote it as broadly as possible. In past wars, the court used to let the president and Congress figure out how to wage the war. That's very different from what's happening today. The court said, 'If you want to do anything, you have to be very specific and precise about it.'"

The logic of the ruling and its requirement that Congress directly authorize presidential actions even in wartime has broad implications.

For one thing, said Laurence Tribe, a law professor at Harvard University, it seems to destroy the administration's argument that Congress blessed the National Security Agency's domestic surveillance program when it voted for the authorization.

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"That argument is blown out of the water and is obliterated," Tribe said.

Stevens also took aim at the administration's chief constitutional argument, the one that critics call "Article II on steroids."

Because Article II of the Constitution, among other things, anoints the president as commander in chief, Yoo and other administration lawyers have argued that the president can ignore or override laws that seem to limit his authority to conduct war. In the current struggle against terrorism, they argue, the entire world is the battlefield.

Perhaps not any more. Steven Calabresi, a law professor at Northwestern and a founder of the Federalist Society, the conservative legal group, said this second argument was also in trouble.

"The court is certainly not embracing the broader Article II power," he said.

Indeed, a footnote in the majority opinion, one sure to be read closely, seems tailored to address these other controversies by rejecting the argument that the president is free to ignore congressional limitations on his power.

"Conceivably the court had in mind controversies like the NSA terrorist surveillance program" in crafting the footnote, said Curtis Bradley, a former Bush administration lawyer who now teaches law at Duke.

There are supporters of the NSA program who say that the Hamdan decision does not affect it. They note that a 2002 appeals court decision said that Congress "could not encroach on the president's constitutional power" to conduct warrantless surveillance to obtain foreign intelligence.

The wholesale rejection of the administration's positions in Hamdan may have its roots in part in judicial hostility toward the memorandums Yoo helped prepare several years ago.

The justices in the majority, McGinnis said, "have been so skeptical of a variety of legal interpretations coming out of the executive branch, like the so-called torture memos, that they are not giving the president any deference."

But some justices seemed to leave a door open, suggesting that the decision is not so much a judicial attack on executive power as it is an insistence that Congress, rather than a small group of administration lawyers, must play a leading role in formulating the response to terror.

"Where, as here, no emergency prevents consultation with Congress," Justice Stephen Breyer wrote in a brief concurrence that three other justices joined, "judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine - through democratic means - how best to do so."

But Yoo was not inclined to accept the decision as a triumph of the democratic process. Instead, he saw it as a judicial usurpation of the president's power to protect the nation. "The court is saying we're going to be a player now," he observed ruefully.

E-mail: pagetwo@iht.com

Tomorrow: John Vinocur writes on the big blimp that is Germany's World Cup euphoria.